to assume an entitlement grounded in state law from a complaint that makes scant reference to an insufficiently identified statute would go against Bell Atlantic’s [Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) ] admonition that a complaint’s allegations must be more than “speculative”
How later courts described this case
- to assume an entitlement grounded in state law from a complaint that makes scant reference to an insufficiently identified statute would go against Bell Atlantic’s [Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) ] admonition that a complaint’s allegations must be more than “speculative”
- “[T]o assume an entitlement grounded in state law from a complaint that makes scant reference to an insufficiently identified statute would go against Bell Atlantic’s admonition that a complaint’s allegations must be more than ‘speculative.’ ”
- “A motion for judgment on the pleadings is treated much like a Rule 12(b)(6
- referring to Curran v. Cousins, 509 F.3d 36, 43-44 (1st Cir. 2007)
Written by the judges who cited it.
The opinion
United States Court of Appeals
For the First Circuit
No. 06-2633
FÉLIX PÉREZ-ACEVEDO; IRIS YOLANDA-QUIÑONES; CONJUGAL PARTNERSHIP
PÉREZ-QUIÑONES, d/b/a DON MANUEL POULTRY FARM,
Plaintiffs, Appellants,
v.
LUIS RIVERO-CUBANO; YASENIA FIGUEROA-GUZMÁN; X AND Y,
Defendants, Appellees,
COMMONWEALTH OF PUERTO RICO,
Representing the Agriculture Department,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Camille L. Velez-Rive, U.S. Magistrate Judge]
Before
Howard, Circuit Judge,
Stahl and Siler,* Senior Circuit Judges.
Noel Avilés-González for appellants.
Juan P. Rivera-Roman and Juan P. Rivera-Roman Law Firm on
brief, for appellants.
Rosa Elena Pérez-Agosto, Assistant Solicitor General,
Department of Justice, with whom Salvador J. Antonetti-Stutts,
Solicitor General, Mariana D. Negrón-Vargas, Deputy Solicitor
General, and Maite D. Oronoz-Rodrìguez, Deputy Solicitor General,
were on brief, for appellees.
*
Of the Sixth Circuit, sitting by designation.
March 12, 2008
HOWARD, Circuit Judge. The appellants, who are poultry
farmers, sued the Commonwealth of Puerto Rico and two Commonwealth
officials under 42 U.S.C. § 1983. The farmers' suit claimed that
the defendants denied them certain benefits, in violation of their
due process rights under the Fourteenth Amendment to the United
States Constitution. The plaintiffs also presented claims under
Puerto Rico law, which were joined under supplemental jurisdiction.
The magistrate judge dismissed the claims. We affirm.
I.
Plaintiffs Félix Pérez-Acevedo and Iris Yolanda-Quiñones
operate Don Manuel Poultry Farm, a farm dedicated to the production
and sale of fresh eggs. In 2003, Puerto Rico's Secretary of
Agriculture promulgated a regulation that reorganized production in
the poultry industry. Administrative Order No. 2003-058-Amended.1
As part of the reorganizational scheme, farmers could, on a
voluntary basis, join a production "nucleus" that would allow them
to market products under the label "Del País".2 The order also
provided that nucleus members would receive specific benefits from
Puerto Rico's Department of Agriculture, including loan-guarantee
programs, infrastructure programs, and tax credits.
1
The enabling authority for this regulation was adopted in 1996.
P.R. Laws Ann. tit. 5, §§ 3051-59.
2
"Del País" is a mark of geographic origin that means "From the
Country".
-3-
The plaintiffs did not join a nucleus, as the Don Manuel
Poultry Farm promotes and distributes its own products and they saw
no business reason to join. As a result, they experienced three
disadvantages: 1) they were denied financial assistance for
expansion of their farm from the Department of Agriculture; 2) they
were charged special fees for inspections conducted by regulatory
agencies; and 3) they were rendered newly ineligible for an
existing supermarket credit program, whereby grocers received tax
credits to buy products from designated local producers.
The plaintiffs filed suit under 42 U.S.C. § 1983 against
the Commonwealth of Puerto Rico and two Commonwealth officials,
former Secretary of the Department of Agriculture Luis Rivero-
Cubano and Deputy Controller of the Fresh Eggs Industry of the
Department of Agriculture Yasenia Figueroa-Guzmán, in their
personal and official capacities.3 The plaintiffs alleged that the
"Del País" program had violated their rights under the First and
Fourteenth Amendments to the United States Constitution.4 They
3
The official capacity claims and those against the Commonwealth
were dismissed early on in the litigation and are not part of this
appeal.
4
On appeal, the plaintiffs assert that the actions of the
defendants deprived them of a property interest in violation of the
"Fifth and/or Fourteenth Amendment." As the Fifth Amendment was
not mentioned in their complaint, we do not consider it now. See
General Motors Corp. v. Darling's, 444 F.3d 98, 113 (1st Cir. 2006)
(court of appeals will not entertain legal theories not raised
below).
-4-
also asserted claims under Puerto Rico's Constitution and P.R. Laws
Ann. tit. 31, §§ 5141-42. See 28 U.S.C. § 1367.5
The defendants' motion for judgment on the pleadings,
under Fed. R. Civ. P. 12(c), was granted, and this appeal followed.
II.
We review the grant of judgment on the pleadings de novo.
Mongeau v. City of Marlborough, 492 F.3d 14, 17 (1st Cir. 2007).
A motion for judgment on the pleadings is treated much
like a Rule 12(b)(6) motion to dismiss. Curran v. Cousins, 509
F.3d 36, 43-44 (1st Cir. 2007). "Because [a Rule 12(c)] motion
calls for an assessment of the merits of the case at an embryonic
stage, the court must view the facts contained in the pleadings in
the light most favorable to the nonmovant and draw all reasonable
inferences therefrom . . . ." R.G. Fin. Corp. v. Vergara-Nunez,
446 F.3d 178, 182 (1st Cir. 2006). Under Bell Atlantic v. Twombly,
127 S. Ct. 1955, 1965 (2007), to survive a Rule 12(b)(6) motion
(and, by extension, a Rule 12(c) motion) a complaint must contain
factual allegations that "raise a right to relief above the
speculative level, on the assumption that all the allegations in
the complaint are true . . . ." Id. at 1965 (internal citation
omitted).
5
The supplemental state law claims were dismissed without
prejudice.
-5-
From this posture, we consider the plaintiffs' claims.
A section 1983 violation occurs when an official acting under color
of state law acts to deprive an individual of a federally protected
right.6 Maymi v. Puerto Rico Ports Authority, ___ F.3d ___, 2008
WL 240376 at *3 (1st Cir. Jan. 30, 2008). Here, we assume that all
facts in the complaint are true. We must determine whether, on
those facts, the plaintiffs would be able show "above the
speculative level" that such a deprivation occurred. Bell
Atlantic, 127 S. Ct. at 1965.
This appeal centers on the plaintiffs' procedural due
process claims.7 The plaintiffs make an initial argument that the
court failed to consider their procedural due process claim in its
order granting the motion for judgment on the pleadings.8 Although
the dismissal order mentions the due process argument several
times, the order does not analyze the claim. Nevertheless, we have
considered the plaintiffs' procedural due process claim and find
that it fails on the merits. See Torromeo v. Town of Fremont, 438
6
For the purposes of a section 1983 analysis, Puerto Rico is
considered a state. Redondo-Borges v. United States Dep't of
Housing and Urban Dev., 421 F.3d 1, 7 (1st Cir. 2005).
7
The plaintiffs have waived the First Amendment and equal
protection claims asserted below by not raising those claims before
us. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
8
The defendants argue that the due process claim was asserted for
the first time on appeal. But the plaintiffs did assert a due
process violation in their complaint, albeit without great detail,
and also argued the due process issue in their opposition to the
motion for judgment on the pleadings.
-6-
F.3d 113, 118 (1st Cir. 2006) (under de novo review we may affirm
the court below on any basis made apparent from the record).
The test for a procedural due process violation requires
the plaintiffs to show first, a deprivation of a protected property
interest, and second, a denial of due process. To meet the first
prong and show that a "statutorily created benefit" is a property
interest, "a person 'must have more than a unilateral expectation
of it. He must, instead, have a legitimate claim of entitlement to
it.'" Coyne v. City of Somerville, 972 F.2d 440, 443 (1st Cir.
1992) (quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)).
In order to be "legitimate," the entitlement must be grounded in
some statute, rule, or policy. Roth, 408 U.S. at 576.
The complaint did assert an entitlement to the "benefits,
credits and incentives" the Don Manuel Poultry Farm received prior
to the enactment of the nucleus program, but whether that
entitlement is grounded in state law is less clear. The complaint
referenced two different sources of state law: 1) a tax credit
program; and 2) a 2001 statute regarding financial assistance for
farmers.
The tax credit program, P.R. Laws Ann. tit. 13, § 8440f,
does not confer a property interest upon the plaintiffs: the tax
credits belong to supermarkets, not farmers. See Town of Castle
Rock v. Gonzales, 545 U.S. 748, 767 (2005) (indirect benefits are
not protected property interests.)
-7-
The plaintiffs' other claim, grounded on an asserted
entitlement to financial assistance based on the 2001 statute,
fares no better. First of all, the claim is not argued on appeal,
and is thus waived. Zannino, 895 F.2d at 17. Second, the
complaint's reference to the statute lacks identifying information
such as a citation or an English language title.9 Conceivably, the
statute grants the plaintiffs a property interest in the financial
assistance. See, e.g., Mard v. Town of Amherst, 350 F.3d 184, 189
(1st Cir. 2003) (finding property interest in firefighter's injury
leave benefits based on Massachusetts law); PFZ Props., Inc. v.
Rodriguez, 928 F.2d 28, 30-31 (1st Cir. 1991) (assuming property
interest in building permit based on Puerto Rico law). But to
assume an entitlement grounded in state law from a complaint that
makes scant reference to an insufficiently identified statute would
go against Bell Atlantic's admonition that a complaint's
allegations must be more than "speculative." 127 S. Ct. at 1965.
We decline to make that assumption here.
Even were we to assume that the plaintiffs had a
protected property interest in financial assistance, to prevail in
their claim they would need to demonstrate a denial of due process.
In this regard, the complaint does not assert that Puerto Rico's
9
"It is well settled that federal litigation in Puerto Rico [must]
be conducted in English." González-De-Blasini v. Family Dep't, 377
F.3d 81, 88 (1st Cir. 2004) (citation and internal quotation marks
omitted).
-8-
procedures in the administration of financial assistance, or in any
other area, violated due process. In their opposition below and in
their appellate brief, however, the plaintiffs reference Puerto
Rico's Uniform Administrative Procedure Act ("UAPA"), P.R. Laws Ann.
tit. 3, §§ 2101-2201, to suggest that they were entitled to a
hearing upon denial of their request for financial assistance. They
do not, however, provide any analysis of the statute to support the
contention that a hearing was required.10
The UAPA provides procedural safeguards for actions
undertaken by Puerto Rico's administrative agencies, but carves out
an exception for certain types of actions, including administration
of loans and subsidies. P.R. Laws Ann. tit. 3, § 2151. Those
actions are considered "informal non-quasi judicial procedures" and
there is no entitlement to formal procedures such as hearings. Id.
The only procedural right available in the case of informal
10
Consideration of another provision mentioned in the plaintiffs'
opposition, 2002 regulation No. 6398, is waived. The plaintiffs
claim that this regulation establishes a framework for providing
financial assistance to farmers. But the regulation is not in the
record, and no English translation is readily available. See
González-De-Blasini, 377 F.3d at 88. The plaintiffs did not file
a motion to supplement the record with this regulation at any
point, nor did they request that this court take judicial notice of
the regulation. Although the plaintiffs discussed the regulation
at oral argument, they neither identified it nor discussed it in
their appellate brief. While a 2001 financial assistance
regulation is mentioned in the plaintiffs' complaint, they have
provided this court with little or no basis to conclude that the
two regulations are one and the same, and no developed
argumentation as to either regulation on appeal. Reliance on 2002
regulation No. 6398 is therefore waived. Zannino, 895 F.2d at 17.
-9-
procedures is the right to petition for reconsideration by filing
a motion within 20 days of an adverse decision. Id. § 2165. Here,
the Department of Agriculture's denial of benefits to the plaintiffs
was an informal procedure. The plaintiffs do not allege that they
requested and were denied reconsideration. In the absence of any
developed argument that the UAPA entitled them to a hearing despite
its express language to the contrary, the plaintiffs' claim that
they were entitled to a hearing fails, as well.
For the above reasons, the plaintiffs have not shown a
denial of rights secured by the Constitution, and as such the motion
for judgment on the pleadings was properly granted.11
Affirmed.
11
The plaintiffs also argued that the court erred in allowing the
motion for judgment on the pleadings to be filed after a pre-
existing deadline. The original deadline to file dispositive
motions was October 15, 2005, and the defendants did not file their
motion until June 27, 2006. In late 2005, both parties consented
to have the case tried by a magistrate judge, who, in response to
delays and rescheduling requests, issued a new scheduling order and
set a new date for trial of August, 2006. The magistrate judge did
not specifically set a new deadline for dispositive motions. There
was no abuse of discretion in the decision to allow the motion.
Judges have "great latitude" to exercise authority in matters of
case management. Rosario-Diaz v. Gonzalez, 140 F.3d 312, 315 (1st
Cir. 1998) (quoting Jones v. Winnepesaukee Realty, 990 F.2d 1, 5
(1st Cir. 1993)) (internal quotation marks omitted).
-10-